R v Campbell

[2021] NSWDC 43

District Court

New South Wales

Medium Neutral Citation:

R v Campbell [2021] NSWDC 43

Hearing dates:

27 January 2021

Date of orders:

27 January 2021

Decision date:

27 January 2021

Jurisdiction:

Criminal

Before:

Judge W Hunt

Decision:

The offender is convicted

Taking into account matters on Forms , the offender is sentenced to an aggregate term of imprisonment of 5 years and 6 months

There is to be a non-parole period 4 years

Note all s.166 matters contained in Forms 1.

Catchwords:

CRIMINAL LAW – Sentence – Armed robbery – Assault with intent to commit serious indictable offence – In company – On Conditional liberty at time of offending – Carry in conveyance without consent of owner – Admissions – Forms 1 – Vulnerable victims – Offender had dysfunctional upbringing.

Legislation Cited:

Crimes Act,

Crimes (Sentencing Procedure) Act.

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013)249 CLR571

Callahan v The Queen [2006] NSWCCA 58

Muldrock v The Queen, [2011] 244 CLR 120 53

R v Ellis (1986) 6 NSWLR 603

R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149

R v Jinnette [2012] NSWCCA 217

R v Millwood [2012] NSWCCA 2,

Veen v R (No 2) 1988 164 CLR 465

Category:

Sentence

Parties:

The Crown
Kenneth James Campbell

Representation:

Counsel:
R El-Choufani – Offender

Solicitors:
Director of Public Prosecutions

File Number(s):

2020/7701; 2020/15757; 2020/15775

Judgment

1. HIS HONOUR: Kenneth James Campbell is before the Court for sentence in relation to six substantive offences. In relation to Count 1 on the indictment ending in 847.42, I will take into account two further offences on a Form 1. In relation to Count 2 on indictment ending in 848.52, I will take into account an additional three offences on another Form 1 when sentencing him for that matter. In relation to the first two counts on that first indictment, they are each offences of armed robbery in breach of s 97(1) of the Crimes Act, for which is provided a maximum penalty of 20 years’ imprisonment and no standard non-parole period has application. Count 3 is an assault with intent to rob in breach of s 97(1) of the Crimes Act with similar penalties. The first Count on the second indictment is an armed robbery, again in breach of s 97(1) of the Crimes Act with a maximum penalty of 20 years’ imprisonment and no standard non-parole period. Counts 2 and 3 on the second indictment are each offences of aggravated break and enter with intent to commit a serious indictable offence in breach of s 112(2) of the Crimes Act, in relation to each of which is provided a 20-year maximum penalty of imprisonment and a standard non-parole period of five years has application.

2. It is common ground between the parties that Mr Campbell pleaded guilty to the matters in the Local Court and he has adhered to his pleas of guilty before me today. He also acknowledged his guilt in relation to each of the matters on the Forms 1 and indicated that he wanted me to take those matters into account when sentencing him for the relevant substantive offence. Common ground between the parties is that those circumstances entitle Mr Campbell to a statutory utilitarian discount of 25%, subject to the early plea legislation, and in due course, I will apply such a utilitarian discount to each of the indicative sentences to be articulated together with an appropriate additional discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act.

3. The facts are agreed between the parties, both the substantive offences and the matters on the various Forms 1, and in brief as follows. Mr Campbell was born on 7 May 1994, which means that he is 26 years of age at this time. He was released to parole on 23 October 2019 and all of the offending is committed in breach of conditional liberty, being that parole. The first offence, which is another on the Form 1, is an armed robbery at the Narooma service station on 25 October 2019 within two days of his release to parole. At about 5.53am on 25 October 2019, the manager of BP service station was serving a member of the public when two people wearing face masks entered the service station. One of the people said to the female customer, “Just stand aside.” Each of the people was wearing a face mask. The shorter of the two offenders was holding a stone, which was thrown at an electronic display screen, damaging it. That person was also holding a stick, which was used to hit other display screens, damaging them as well. The taller person of the two offenders was holding a length of timber with a nail.

4. The employee opened a change till, removed coins from it, which were taken by the co-offender. The employee tried to open another till, which contained cash, but the short person hit him. The till became inoperable. The taller person said to the employee, “I need money. The safe money. Notes not change,” and continued to hold the length of timber. The employee removed a bag from a cupboard that had the takings of four previous days, which totalled $5,240 in cash. Those funds had been prepared for banking that morning. The taller person also said, “I need smokes.” A number of packets and cartons of cigarettes were provided onto the counter and the shorter person instructed the employee to put them into a carry bag, which was done. The two offenders then fled the service station together. The actions of the two offenders were captured on CCTV footage and this offender became at least a potential suspect at that time after an appeal to the community for information.

5. The offences at Count 1 of the first indictment are that on 23 December 2019 at 10.30pm, a person called Tyler Simpson was working at the Wicklow Hotel, Marsh Street, Armidale. All the patrons had left for the night and Simpson was preparing to close the hotel. He had finished mopping and was cleaning the bar. The manager and another staff member were on the second level counting the takings from the night. At about 10.33 pm, this offender and three other offenders arrived at the Wicklow Hotel in a Camry that was later reported stolen. The offender and two of the co-offenders entered the premises through an external entry door located along Dumaresq Street. The offender entered the door armed with two knives. The second offender had a crowbar and the third offender was armed with a large knife.

6. Mr Campbell ran into the bar area and slipped over on the floor. He got up and ran towards Mr Simpson, who was in the bar area. He grabbed Mr Simpson by the collar and he put the blunt side of the knife towards Mr Simpson’s throat and said, “Where’s the money?” All three offenders took Mr Simpson upstairs to the manager’s office with the offender holding the knife towards him. The other employees were counting money in the manager’s office. Each of the three employees were told to sit on the ground. The offenders required the employees to get on their knees and put their faces on the ground, which they did. The safe was opened and the contents were stolen. Also, two ATM cannisters, a white calico cash bag, a laptop computer, cash in various drawers, Mr Gray’s car keys and wallet, including a $100 note and various bank cards and credit cards and his licence. The total amount of cash stolen was about $55,224. The offenders left the hotel. They entered the silver Camry and drove east. They burnt that vehicle out in an empty paddock, which is the other offence that is on a Form 1 in relation to Count 1 over and above the Narooma robbery.

7. On 4 January 2020, the BP service station in Armidale was staffed by Mr Crouch and Mr Spies along with the store manager, Mr Williams. At about 3.46 pm on that day, the offender entered the front door of the store and approached the console area. He had the hood of his jumper over his head and had a distinctive black bandana covering his face. He was armed with two knives upon entering the store. After seeing the offender moving towards them, the three employees went in the office and closed the door and locked it. Mr Williams pressed a duress button to seek assistance. The offender jumped the counter and kicked the office door, which did not open. He went to the console area to the safe while the staff watched on CCTV footage. The offender was unable to open the safe. He took the entire till in its locked case and he jumped back over the counter and fled the scene. The till contained $589.45 in cash. That is the offending in relation to Count 2.

8. The offending in relation to Count 3 in relation to the first indictment is as follows. About 10.15pm on 6 January, staff of the White Bull Hotel in Marsh Street, Armidale, Mr Lomax and Ms Aldridge, were packing up so that they could close earlier, as there were only two customers playing poker machines in the hotel. Another employee, the chef, remained on the premises. Mr Lomax packed up one of the tills in the TAB section before walking to the restaurant area to assist the other employee in packing up. About this time, the offender entered the White Bull from the rear entrance armed with a knife that was about 30 centimetres long. He had dark material covering his face. He entered the gaming room and jumped the counter into the gaming till area. He opened a cupboard and two drawers in that area.

9. Mr Lomax was in the bar and saw the offender from behind. He called out, thinking it was the chef, and the offender turned around and said, “Where’s the cash?” Mr Lomax then yelled out, “Call the police,” knowing that the co-workers and other customers were nearby. Mr Lomax ran into the lounge area and then the restaurant area. Ms Aldridge crouched on the ground and crawled to the kitchen when she saw the offender chasing Mr Lomax. The offender chased Mr Lomax into the main bar. Mr Lomax turned toward the offender and threw chairs and tables at him. In due course, the offender, who was of Aboriginal appearance, ran past Mr Lomax, one of the chairs having hit him. I viewed the CCTV footage of that offence as well as the BP offence and it must have been a frightening passage for the employees at the White Bull.

10. The offending in relation to the second indictment on 9 January 2020 commences with carry in conveyance without the consent of the owner, which is one of the offences on the form 1 to Count 2. Mr Caur is the owner of a Ford Falcon sedan. A set of those keys were stolen from Mr Caur’s premises on 3 January 2020 by persons unknown. About 12.30am on 9 January, 2020 Mr Campbell and two co-offenders travelled to Claude Street, Armidale. Once at that location, one of the co-offenders approached the Ford Falcon sedan using the key stolen by another person. The vehicle was unlocked and that person drove the vehicle. After a short distance, he picked up Mr Campbell and another offender. Those offenders did not have permission to take the drive. They are the facts in relation to the take and drive.

11. The facts in relation to an aggravated break entrance commit serious offence which is also on the Form 1. On or about 12.40am on 9 January, an offender drove the Ford sedan to the Armidale Golf Club while Mr Campbell and another offender approached the front glass door of the club. Mr Campbell and the other offender smashed the glass entry door and gained entry to the club. An alarm was activated at 12.42am. On gaining entry to the clubhouse, the two offenders searched the premises for cash. An empty cash register was taken from the bar. The offenders left the clubhouse and returned to the vehicle and were driven away. In due course, the vehicle crashed into an unknown object and the offenders got out, leaving the vehicle at a particular location in Armidale.

12. The facts in relation to Count 2 on the second indictment and an additional matter on a Form 1 of take and drive conveyance without consent are as follows. Amelia Clement was staying at her friend Greta Schultz’s house in Allingham Street, Armidale. At about 1.30am on 9 January, 2020 Ms Clement was asleep. No one else was in the residence. A Subaru Forrester belonging to Ms Schultz was parked in the driveway. The offender has entered the house through the front door, which was closed but unlocked. They entered the bedroom where Ms Clement was asleep. She woke up when the light was turned on. She saw a tall, slender male dressed all in black with a mask over his face and a black hooded jumper standing beside her. She saw all three offenders in the bedroom. All of their faces were covered. One offender was holding a hatchet. The co-offender was holding a 37 centimetre kitchen knife.

13. He asked where the keys to the car were. Ms Clement did not have the keys. The other offender required Ms Clement to get out of bed and she complied. That same offender asked, “Where’s your money?” Ms Clement said, “Don’t hurt me. I’ll give you some money.” She gave that offender $200 in $50 notes and said, “This is all I have.” The same offender asked Ms Clement for the car keys again. She said that she did not know where the keys were. In due course, she became explicably terrified and began to cry. Eventually, the keys to the Subaru were located and all three offenders left the residence and walked to the silver Subaru Forrester station wagon. They entered that vehicle and the vehicle was driven away. Those are the facts in relation to the robbery and to the take and drive offences.

14. Facts in relation to Count 1 on that indictment are that the offenders drove north along Marsh Street in Armidale. At that time, Renee Tompkins was walking home, having been visiting a friend. She was rolling a cigarette when she saw the Subaru station wagon stop next to her. She thought she could get a ride. She had on a shoulder bag that contained a 25-gram packet of JPS tobacco and she also had a black leather jacket. One of the offenders said, “Get in now.” She got into the rear seat and sat on the baby seat. The principal offender in relation to Count 2 was driving the vehicle. Ms Tompkins offered the offenders a cigarette.

15. That offender said, “Have you got any money for petrol?” Ms Tompkins said, “Sorry, I don’t have any.” In due course, that offender told Campbell to get out. “Get out. Get everything off her.” Ms Tompkins got out of the vehicle. This offender got out of the car holding a small axe and raised it up. He said, “Give me your bag. Give me everything.” Ms Tompkins feared that she would be struck by the axe. This offender took Ms Tompkins’s shoulder bag that contained the tobacco and the leather jacket. He got back in the car. The vehicle drove back towards Armidale. Ms Tompkins hid by the side of the road, continued to hide until she eventually waved down a truck. She saw police near the Powerhouse Hotel for related reasons and reported to them what had happened.

16. The facts in relation to Count 3 in relation to the second indictment are that at about 1.45am on 9 January 2020, the vehicle that was carrying the three offenders travelled to the Powerhouse. All three offenders got out of the vehicle. The co-offender Walker got into the driver’s seat and the other offender and Mr Campbell approached the entry to the hotel. Mr Campbell used a small axe to smash the glass, which caused the electronic doors to open, and he and the co-offender entered the foyer of the motel. The night manager had been downstairs in the lounge area when he heard smashing glass and walked up the stairs towards the foyer. After he had taken about four or five steps, Mr Flynn (the manager of the Powerhouse) saw the smashed glass door and he saw the two offenders dressed in dark clothing with their faces covered with hoodies over their head.

17. Mr Campbell said to Mr Flynn, “Hey you, come here and show us where the money is.” Mr Flynn ran back down the stairs towards the kitchen. The other co-offender ran to the reception area and searched that. Mr Campbell chased Mr Flynn down the stairs while he continued to hold the small axe. He ran through a hinged door, which he then slammed shut and held closed. Mr Campbell attempted to gain entry to that area but was unable to do so. He went to the restaurant bar area, searching for cash. In due course, Mr Campbell was seen by closed circuit television taking two bottles of spirits. Both the offenders ran from the scene. The person who was driving the silver Subaru collided with a police vehicle and the driver Walker was arrested about 200 metres away from the Powerhouse Hotel.

18. On 16 January, police attended an address in Marsh Street, Armidale and located this offender, Mr Campbell, in a bedroom. At the time of his arrest, although investigating police suspected his involvement in the offending of 25 October, 23 December 2019, 4 January, and 6 January 2020, there was not any evidence linking him to those offences. The only evidence linking the offender to the offending that I have described in relation to the second indictment, all committed on 9 January 2020, was an ERISP interview between his co-offender, Bruce Walker, and the police. In due course on 16 January, 2020, notwithstanding that the Aboriginal Legal Service had advised the custody manager that Mr Campbell did not want to be interviewed, he was, in fact, interviewed.

19. He admitted his involvement in all of the offences of 9 January 2020. He declined to identify his Armidale co-offenders to the police. He admitted his involvement in the offences of 23 December 2019, 4 January 2020 and 6 January 2020. He indicated in response to a question was he sorry for committing the robbery at the Wicklow Hotel - he said yes. When he was asked why he did it, he said, “I don’t know. I don’t know. Just did it. I don’t know. I don’t even know why. I don’t even have a clue.” In relation to the BP robbery on 4 January 2020, Mr Campbell admitted that he had at least one knife but possibly two. He gave an account in relation to the White Bull robbery consistent with what I saw on the closed circuit television. Later, he was interviewed separately about an armed robbery in Narooma on 25 October 2019 and he indicated that he knew about that matter. In due course, he made full admissions concerning his involvement in the Narooma robbery.

20. The offender’s admissions in his records of interview constitute the only direct evidence inculpating him in relation to the offences of 25 October 2019, 23 December 2019, 4 January 2020, and 6 January 2020. Apart from his admissions in his record of interview, the only direct evidence of the offender’s involvement in the various offences of 9 January 2020 was Mr Walker’s assertions in his ERISP with the police. Mr Campbell has remained in continuous custody since his arrest on 16 January 2020. His parole was revoked as a result of these offences and that is an issue to which I will return in due course in relation to issues of totality and backdating.

21. In assaying the objective seriousness of the offending, I take into account in relation to each of the matters that the offender was in breach of conditional liberty at the time of the commission of the offences. Although the Crown contended that the offender’s not insignificant criminal record could be taken into account as an aggravating circumstance in the way contemplated by the Court in Veen v R (No 2) 1988 164 CLR 465, I am not persuaded that it has yet become a record that operates as aggravation in that particular way. Clearly his record does serve to disentitle Mr Campbell to leniency. Broadly, I accept the Crown’s general submission that each of the offender’s offences fits somewhere in the mid-range of objective seriousness of offending.

22. Looking at the offences one by one, the offending at the Wicklow Hotel is, to my mind, the most serious of the offences. It was committed in company. The victims in that matter were vulnerable by virtue of their occupation and the timing of the offence. The co-offenders were also armed with weapons and a not insignificant amount of property was stolen in that offence. The degree of planning, while moderate, does not seem to be more significant planning than would be customary for an offence of that kind. There was little actual violence, in fact, although there was, of course, a real threat of violence. That matter falls just above the mid-line of the mid-range of objective seriousness. Of course, when I come to sentence Mr Campbell for that matter, I will take into account the matters on the relevant Form 1. I do not propose to quantify the objective seriousness of each of the offences on the Form 1.

1. In relation to the aggravated break, enter, and steal at the Powerhouse, I take into account that the victim Mr Flynn was vulnerable and that the offending occurred in company. There was a very small amount of property, in fact, taken. That offence has the serious indictable offence that was intended by the break and enter as intimidation, which is less serious than some of the other types of offending that can be averred. There was no inordinate planning. That seems to have been largely a spontaneous offence. In relation to that matter, I ought to observe that Mr Campbell’s involvement exceeded the involvement of Mr Walker, given I am obliged to have regard to Mr Walker’s offending and his general circumstances and the penalty imposed on him when I come to sentence Mr Campbell.

2. In relation to the aggravated break enter at the Armidale Golf Club, I take into account that there was very limited property stolen. The premises were not occupied at the time, which reduces the objective seriousness of the matter. It was an aggravating circumstance that Mr Campbell was in company of the other offender at the time that he entered. That matter falls towards the lowest end of the mid-range of objective seriousness for those reasons.

3. The armed robbery of Renee Tompkins was made more serious because, while she may not have been a vulnerable victim in the way contemplated by the authorities, Ms Tompkins was, in fact, vulnerable, being a single female out on the street in Armidale. I take into account that very limited property was taken and Ms Tompkins seems to have been at least initially compliant with going in the vehicle, although that obviously changed when the robbery took place. That matter is in the mid-range of objective seriousness but does not reach the middle of that range.

4. In relation to the aggravated break, enter, and steal where Amelia Clement was the victim, that matter was made more serious because she was a single female alone and asleep. There were multiple offenders and it is clear that that was a hugely distressing exercise to Ms Clement, particularly in circumstances where demands were being made of her for the car keys when she did not have an ability to comply. That matter is in the mid-range of objective seriousness and about the middle of the mid-range of objective seriousness.

5. Moving to some matters that are personal to Mr Campbell. He has a record of past offending that denies him leniency, as I have said. He was incarcerated often during his juvenile years. He has been, in a period between 7 May 2012 and today, 27 January 2020, which is the whole of his adult life - he has been in custody for 2,588 days of a total potential period of 3,188 days. On Mr El-Choufani’s calculations, which I accept and Mr Crown conceded were accurate, Mr Campbell has spent 81.17% of his adult life in custody. There is other evidence about that, but those figures alone, particularly taking into account not insignificant periods in juvenile detention, mean that Mr Campbell must be, even just statistically, at risk of institutionalisation. Over and above that, some of his comments made to Katie Seidler, who is a very experienced forensic psychologist, indicate that he feels comfortable in prison and that he enjoys the structure. That is, perhaps, explicable given some of the difficulties that he has faced when he has been living life during his growing up and in the community.

6. Three prevailing circumstances have made his life very difficult, not only in custody, but in the wider community. I am prepared to give significant weight to what is set out in the reports of psychiatrist Dr Rafe Pulley and Ms Seidler, partly because there is some concurrence between those two documents and the history provided and partly because there is a great deal of consonance between what they observe and some features of the offender’s criminal record. Mr Wiggins for the Crown, of course, observed that it was a matter for weight, but he did not put in contest much of the narrative history disclosed in those reports.

7. Drawing from those reports, there are three features that are particularly important in assessing Mr Campbell’s subjective case. The first is that he had a pervasively difficult and dysfunctional upbringing. His father was an alcoholic. His mother sometimes drank to excess. When they were both intoxicated, they argued. Mr Campbell’s father spent a lot of time in custody and even though Mr Campbell holds him in high regard, it is clear that he was a largely absent father. He was succeeded by a range of partners who were also physically violent to Mr Campbell’s mother. He witnessed violence in the family home and was subject to violence in the family home.

8. He made a report of persistent sexual abuse of him by a male family member. Of course, I am not able to make a finding on the balance of probabilities in fact in relation to that offending, but I would observe that it is highly often the case that people with the kind of neglected, disadvantaged background that Mr Campbell experienced are more likely to be abused by family members than some others in the community. It is clear that such a dysfunctional upbringing means that his moral culpability ought be seen as being reduced for this offending on the basis of the principles as expressed by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and by Simpson J in R v Millwood [2012] NSWCCA 2, among other authorities.

9. Additionally, particularly drawn from Dr Pulley’s account together with the helpful interpretation of intellectual testing when Mr Campbell was a teenager, it is clear that he suffers from a fairly pervasive level of developmental delay. Relevantly, that is an organic condition that makes it hard for him to assay the consequences of his actions. That is not a condition that is amenable to any improvement. He is in the borderline scale of functioning on a couple of the axes, including the totality of his intellectual functioning. Over and above that, even though Dr Pulley and Ms Seidler were not able to form a definitive diagnosis, it is clear that he has been on anti-psychotic and anti-depressant medication from time to time and remains so in custody now. Although I am not able to draw any causal connection between his mental conditions and the offending, I am able to draw a conclusion about his low level of intellectual functioning and his involvement in these matters.

10. In any event, consonant with what the High Court said in Muldrock v The Queen, [2011] 244 CLR 120 53 his moral culpability and the appropriateness of him being a vehicle for general deterrence is reduced because of those particular conditions. I accept Mr Wiggin’s careful submission that there is not really any direct evidence of time in custody being more onerous because of Mr Campbell’s mental conditional or developmental delay. He does seem rather comfortable there. Although there is always a need for the consideration of the countervailing consideration of future dangerousness, that more relates to his low level of intellectual functioning than it does to his mental condition, whatever it may be, given that it seems to be very well managed by medication, at least at the moment while he is in custody.

11. In terms of the risk of institutionalisation, the following is relevant. One of the principal purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act is a need to protect the community. Mr Wiggins, responsibly, in my view, accepted for the Crown that that can be a difficult exercise when dealing with somebody like Mr Campbell. Part of the exercise of protecting the community is, so long as it is not unduly prolonged, a period that somebody spends in custody when they are unable to be at liberty and commit offences. He also accepted that the notion that somebody could be rehabilitated was truly more protective of the community’s interest than otherwise.

12. Although the Court of Criminal Appeal in R v Jinnette [2012] NSWCCA 217 found that a risk of institutionalisation was a proper basis on which to find special circumstances, Johnson J preferred to formulate it in this way. These are my own words paraphrasing his Honour’s reasoning. That it is really in the protection of the community that those at risk of institutionalisation be given the chance to rehabilitate in the community because if institutionalisation can be put to one side, the prospect of a sentence of imprisonment may have a specifically deterrent effect that they otherwise do not have in the institutionalised. I have that notion strongly in mind in terms of working out how to deal with the competing slings and arrows of Mr Campbell’s difficult sentencing exercise.

13. Although it was accepted between the defence and the Crown at some level that a s 23 discount should operate in terms of Mr Campbell’s admission of his own offending, first to effectively make out the case in relation to all the first sets of matters and to significantly strengthen the case in the second set of matters. There was some division as to how I should quantify such a discount, although both representatives responsibly conceded that the formulation of the exact discount was a matter within my individual sentencing discretion. I take into account in relation to the discount to be applied in the first set of matters that although the police may have had their suspicions, there was nothing that would have proved those offences against Mr Campbell but for his admissions to the police. I am ultimately persuaded that in relation to those matters, pursuant to s 23 of the Crimes (Sentencing Procedure) Act, and/or relating to past assistance that a discount of 15% should operate so that the global discount to be applied to the indicative sentences will be 40%.

14. I accept Mr El-Choufani’s submission in relation to Mr Walker, to whom I accorded a global discount of 35%, that the case against him in relation to his own offending was made stronger because he was arrested closer to the vehicle that was intimately involved in at least some of the offences to which he ultimately admitted his guilt. I accept Mr Campbell’s cooperation did not extend, as Mr Walker’s did, to the nomination any other individuals as offenders. I take the view that the discount pursuant to s 23 for the latter offences of 9 January 2020 should be somewhat more diluted. I take the view that a 10% discount for past assistance is called for so that the global discount for those matters to be applied to the indicative sentence will be one of 35%.

15. I accept Mr El-Choufani’s submission in relation to the first set of matters, accepting that the matter at Narooma is a little bit outside the general time range, but otherwise that those matters were committed in a fairly confined temporal range. Beyond that, I accept the submission made by him, and accepted by inference by the Crown, that all of the offences of 9 January 2020 happened quickly, one after another, and in a very limited timeframe and a greater degree of notional concurrence ought attach to those matters. Given that I am fixing an aggregate sentence, I will be obliged to apply the discounts that I had identified to each of the indicative sentences and in matters where a standard non-parole period is provided for, I am obliged to identify not only a total sentence, but also a non-parole period as well. It will become clear that apart from the plea of guilty and the way in which I have assayed the objective seriousness of the offending that the reasons for departing from the standard non-parole period relate very strongly to the powerful subjective case presented on behalf of Mr Campbell, given his life circumstances.

16. It is accepted by the parties the power of the R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149 guideline to ordain an appropriate sentencing range for the robbery matters is constrained because of some of the features that I have identified. I do not intend to articulate that further. Mr El-Choufani identified a range of matters where various offenders had been sentenced and the sentences had been reviewed, whether successfully or not, in the Court of Criminal Appeal. A number of those offenders faced a greater range of criminal misconduct against them. Although some of the subjective features of various of the offenders, most particularly Mr Gray, were allied with that relied on by Mr Campbell, it must be said that he presented, to my mind, a more complete set of various subjective deficits than did any of the other offenders in the potentially analogous cases.

17. That material helped me assay a potential range, but I do note that none of those matters were the subject of any kind of R v Ellis (1986) 6 NSWLR 603 or s 23 discount. Ultimately, in the formulation of these matters, the weight that has been given to rehabilitation is achieved because of the finding of special circumstances and a not insignificant rearrangement of the relationship between the head sentence and the non-parole period. Having said that, the sentences themselves, both the indicative sentence and the aggregate sentence, become far more modest than their starting points because of the application of not insignificant global discounts of 40 or 35%, as the case may be.

18. The formal orders in relation to the matters will be this. Mr Campbell is convicted in relation to the six principal offences. On Count 1 on indictment 1, taking into account the matters on the Form 1, the appropriate starting point in sentence before the application of the discount would have been four years and the indicative sentence, accordingly, is 29 months. In relation to Count 2, the starting point sentence would have been three and half years, but becomes upon the application of the 40% discount 25 months. The sentence for the assault with intent to rob at the White Bull Hotel, the starting point sentence would have been 36 months so that the indicative sentence after the 40% discount becomes 24 months.

19. In relation to the second indictment, Count 1, but for the application of the 35% discount, the starting point sentence would have been 36 months and becomes 24 months. Count 2, taking into account the offences on the Form 1, the starting point sentence would have been 48 months, but with the application of a 35% discount becomes a head sentence of 31 months with a non-parole period of 21 months. In relation to Count 3, the starting point sentence would have been three and half years so that upon the application of the discount, the indicative sentence is 27 months with a non-parole period of 19 months.

20. I have had regard to notional considerations of totality, partial accumulation, and partial concurrency in arriving at the aggregate sentence. I find special circumstances on the basis of the need for an extended period of rehabilitation in the community and in part to promote the protection of the community by avoiding Mr Campbell becoming further institutionalised. The aggregate sentence is one of five years and six months to date from 1 February 2020 and expiring on 31 July 2025. There is to be a non-parole period of four years, which means the earliest date of release is 31 January 2024.

21. The parties will see that I have backdated almost to the date of his arrest Mr Campbell’s sentence. That is because I took into account the breach of conditional liberty as one of the aggravating circumstances when I characterised the objective seriousness of all of the offending. Although there is a modest amount that relates wholly to the revocation to parole, because of the principles enunciated in Callahan v The Queen [2006] NSWCCA 58, I propose to avoid the appearance of doubly counting and so form the view that there should be a high level of concurrence between a breach of parole and the instant sentence.

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Decision last updated: 03 March 2021